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Home International Environmental Law Archive for category "Climate Change"

Canute’s Kingdoms: Can small island states legislate against their own disappearance?

Published on February 20, 2019        Author: 
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It was recently drawn to my attention that Tuvalu and Kiribati have in recent years passed legislation, following a relatively common scheme, that removes reference to the low tide line as the baseline for measuring maritime zones and replaces it with a system of fixed geographic coordinates. (The Marshall Islands has taken a somewhat similar approach.) On its face, this may constitute a claim that their maritime baselines are permanently fixed. That is, they will not retreat or be redrawn with rising sea levels.

This might seem a small matter in the range of legal issues implicated by climate change – it is not.

As every public international lawyer probably recalls, at least after the South China Sea arbitration, an island (within the meaning of article 121 of the UN Convention on the Law of the Sea) generates a full suite of maritime zones but must be more than a mere rock incapable of sustaining human habitation or a maritime feature which is only above water at low tide. Imagine your national territory is composed of a series of islands, some of them quite small but generating extensive maritime zones. Long before you risk becoming completely “de-territorialised” by rising sea levels you might lose much of your national livelihood if islands previously generating exclusive economic zones become mere low tide elevations.

So the question becomes, can a state freeze the baselines from which its maritime zones are projected? Read the rest of this entry…

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COP 24 and Climate Finance: A Stepping Stone or a Blurred Line?

Published on January 23, 2019        Author: 
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In December 2018, the 24th Conference of the Parties (COP 24) to the United Nations Framework Convention on Climate Change (UNFCCC), took place in Katowice, Poland. The main objective of those negotiations was to finalize the so called ‘Paris Rulebook’ [the Paris Agreement Work Programme (PAWP)], which would constitute a set of rules to implement and operationalize the Paris Agreement. The issues at stakes varied from mitigation, adaptation and loss and damage, to more technical issues, such as transparency, climate finance and carbon market mechanisms under the Paris Agreement.

This post will focus on the progress made on the issue of climate finance based on an analysis of the COP 24 decision on the relevant issues. I begin by reiterating the importance of the findings presented by the latest reports of the Intergovernmental Panel on Climate Change (IPCC) and the Standing Committee on Climate Finance (SCF) under the UNFCCC. The SCF report on the biennial climate finance assessment highlighted the current methodological challenges concerning the reporting and verification of public and private climate finance, referring to the existence of uncertainties and gaps regarding the collection of climate finance data. Some of the SCF recommendations to the COP include i) enhancing the transparency, consistency and comparability of data on climate finance, ii) encouraging Parties providing climate finance to enhance their reporting of climate finance provided to developing country Parties and iii) encouraging developing country Parties that provide support to report information on climate finance provided to other developing country Parties.

One of the most ambiguous, but at the same time significant issues of the COP 24, was that of accounting and reporting on climate finance. The Paris Agreement contains two main provisions on financial flows, namely: article 2.1(c) providing for a general framework of making financial flows climate resilient; as article 9, which, apart from the general climate finance obligation, also provides for the ex-post and ex-ante finance transparency. The operationalization of the latter has been one of the main tasks of COP 24. The formal COP 24 agenda provided for the negotiation of the following matters relating to climate finance:

  1. long-term climate finance,
  2. matters relating to the SCF,
  3. the Green Climate Fund (GCF),
  4. the Global Environment Facility (GEF) and
  5. the identification of the information to be provided by Parties in accordance with Article 9, paragraph 5, of the Paris Agreement.

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Global Pact for the Environment: Defragging international law?

Published on August 29, 2018        Author: 
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A ‘defrag’ computer program that consolidates fragmented files on a hard drive holds metaphorical attraction for international lawyers. Our encounters with international law often seem to be specific to particular legal regimes, which have a functional orientation and professional sensibility that, in the words of the International Law Commission, may be self-contained. International environmental law and human rights, for example, were developed at different times and are supported by different international and domestic institutions. Now, the United Nations is considering a proposal that promises to integrate various parts of international law, thereby improving its performance: the Global Pact for the Environment.

The draft preliminary text for the Global Pact for the Environment entrenches a right to an ecologically sound environment (Article 1), sets out a duty of states and other actors to take care of the environment (Article 2) and requires parties to integrate the requirements of environmental protection into their planning and implementation, especially to fight against climate change, and to help protect the ocean and maintain biodiversity (Article 3). These and other clauses provide a framework that follows the existing international human rights covenants – on civil and political rights and on economic, social and cultural rights – to promote a ‘third generation’ of fundamental rights. On 10 May 2018, a resolution adopted by the United Nations General Assembly established an ad hoc open-ended working group to analyse possible gaps in international environmental law and, if deemed necessary, to consider the scope, parameters, and feasibility of an international instrument (which could include, but is not limited to, a legally binding agreement along the lines of the Global Pact). Two co-chairs were appointed the following month. An accompanying White Paper outlines the Pact’s antecedents, which include the Rio Declaration on Environment and Development. In this short post, I consider three ways in which the Pact impacts upon the interaction between regimes and ‘defragments’ international law. Read the rest of this entry…

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The Security Council and Climate Change – Too Hot to Handle?

Published on April 26, 2018        Author: 
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Introduction

The Security Council, the only body of the United Nations that can adopt binding coercive measures, has so far been reluctant to train its sight at climate change. As the consequences of climate change become ever more severe, an important question is therefore whether the Security Council will address the security implications of climate change.

Article 24 of the UN Charter gives the Security Council primary responsibility for the maintenance of international peace and security. The Council’s classic domain has been interstate armed conflict. Starting in the early 90s, the Council began to show a greater willingness to prescribe measures also in internal situations of humanitarian emergency, thereby articulating a new approach to what constitutes a threat to international peace and security (clearly described in Presidential Statement S/23500, 31 January 1992).

The purpose of this post is to examine whether we can expect a similar evolution when it comes to climate change. In doing so, we must distinguish between three different ways in which the Council can address climate change.

First, the Council can address climate change as part of its general response to conflict situations. Ongoing hostilities in Libya, South Sudan, Yemen and Syria were all catalyzed by extraordinary droughts, storms and extreme flooding, which caused economic and political turmoil and instability. Yet, all these conflicts are recurring items on the Security Council’s agenda. Seen this way, the Council has already shown its aptitude to deal with the immediate security implications of climate change as part of its conflict management agenda.

Second, the Council can proscribe targeted measures to prevent climate change as an independent driver of conflict. This is arguably very different than merely tackling the violent effects of climate change without addressing climate directly. Third, the Council can address security implications of climate change occurring outside of conflict. This is an especially acute problem for most of the so-called Small Island Developing States (SIDS), whose very existence are threatened by sea-level rise, hurricanes and dwindling natural resources. Their remote geographical location and small populations suggest that the situation in those states could gradually deteriorate without causing much conflict or international instability.

The focus of the remainder of the post will be on the Council’s ability to address climate change directly, both as an independent driver of or unrelated to conflict. Read the rest of this entry…

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Reflections on the US withdrawal from the Paris Climate Change Agreement

Published on June 5, 2017        Author: 
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Ending months of fevered speculation, President Donald Trump fulfilled his campaign promise and announced US withdrawal from the 2015 Paris Agreement last week. He did so because in his opinion the Paris Agreement inflicts ‘severe energy restrictions’ on the United States and ‘punishes’ the United States ‘while imposing no meaningful obligations on the world’s leading polluters.’ This post seeks to examine the merits of the US’ stated rationale for withdrawing from the Paris Agreement, and then offers some reflections on next steps for the US in the international climate change regime.

How Valid are Trump’s Criticisms?

President Trump’s remarks reveal a fundamentally flawed understanding of the Paris Agreement. First, his remarks suggest that the Paris Agreement is a prescriptive instrument that ‘inflicts’ restrictions and ‘imposes’ obligations on states. This is not the case. Read the rest of this entry…

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A Proposal for a Multilateral Border Carbon Adjustment Scheme that is Consistent with International Trade Law if the Trump Administration withdraws from the Paris Agreement

Published on May 22, 2017        Author: 
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On the campaign trail, President Trump repeatedly promised to “cancel the Paris Climate Agreement and stop all payments of US tax dollars to UN global warming programs”. He had previously called global warming a “hoax” and a “con” numerous times, and “a concept created by and for the Chinese in order to make US manufacturing non-competitive.” Although Trump quietly dropped his pledge to cancel the Paris Agreement from his 100-day “Contract with the American voter”, and has since said that he “has an open mind” on the Paris Agreement, there remains at present a fierce debate within his administration on whether to withdraw, with no final decision expected before the end of the G-7 summit on May 26 and 27.

The essential thesis of this blog post, which summarizes a longer paper available on SSRN, is that international trade law will permit border carbon adjustments (BCAs) on products from the US, if the Trump Administration withdraws from the Paris Agreement, so long as these schemes are well-designed to avoid the World Trade Organization (WTO) prohibitions on arbitrary or unjustified discrimination and on disguised protectionism, as interpreted by the WTO’s Appellate Body in its US–Shrimp report and US–Shrimp 21.5 decision. This post proposes a multilateral border carbon adjustment scheme (MBCA) that other countries could agree to impose on the US should it withdraw from the Paris Agreement.

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The US and the Paris Agreement: In or Out and at What Cost?

Published on May 10, 2017        Author: 
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Ever since President Donald Trump won the US elections, climate pundits have been playing the ‘will they, won’t they’ game in relation to US withdrawal from the hard-won and widely accepted 2015 Paris Agreement. The political need of the hour, it appears, is to keep the US in, and while that is certainly a desirable goal, it is time to ask, ‘at what cost’?

The US decision on whether it will withdraw from the Paris Agreement is imminent, but in advance of this decision President Trump has begun the process of dismantling Obama-era domestic regulations designed to address US greenhouse gas emissions. In the circumstances, even if the US decides to remain in the Paris Agreement, it would need to either lower the ambition of its nationally determined contribution (NDC), or be ready to fall short of it. This is at the heart of the current controversy animating the climate world – can a state downgrade its NDC under the terms of the Paris Agreement? American legal advisors in an understandable bid to keep the US in the Paris Agreement, are arguing that it can. I would like to argue that a different interpretation, one more in keeping with the object, purpose and spirit of the Paris Agreement, is possible, and even desirable.

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Trumping International Law? Implications of the 2016 US presidential election for the international legal order

Published on January 3, 2017        Author: 
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Any assumptions about the implications of the 2016 US presidential election for international law are premature and tentative. There is no proper foreign policy programme against which one could evaluate the future policy of the new administration. We know from Trump’s announcements and from a foreign policy speech of 27 April 2016 that he opposes the Paris Agreement, the WTO, NAFTA, TTP and TTIP as well as the nuclear deal with Iran. Thus, political analysts immediately described the election of Trump as ‘the beginning of a new and darker global order’ and announced the end of the post-World War II order. International lawyers assume that a post-human rights agenda lies ahead. Do we finally face the end of the liberal international order and globalization more generally?

Of course, there are also other voices: those who compare a possible withdrawal of the US from the Paris Agreement to its non-participation in the Kyoto Protocol; those who hold that globalization is anyway inevitable; those who stress that populism in Latin America, where opposition to globalization was very strong, is in decline again; those who compare Donald Trump with Ronald Reagan; and those who count on new technologies and the young generation. If it was just for the election of Trump I would probably share the idea that his policy may only represent a temporary slump in the overall progressive development of the international legal order. However, the symbolism of Trump’s election is not an isolated incident but fits into a more general pattern. Certain phenomena indicate that we currently observe a crisis of international law of unusual proportions which requires us to reassess the state and role of law in the global order Read the rest of this entry…

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What Will a Trump Administration Mean for International Agreements with the United States?

Published on December 13, 2016        Author: 
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On 20 January 2017, Donald Trump will become the 45th President of the United States. During the campaign, he spoke often about terminating landmark international agreements concluded by the Obama administration, including the Paris Agreement on climate change, the Iran nuclear deal, the Trans-Pacific Partnership and the normalization of relations with Cuba. Predicting what might actually happen in a Trump administration is difficult, because his statements as a private citizen, candidate and president-elect have been inconsistent. Should he wish to follow through on the campaign rhetoric to take immediate action on these issues, what can the president actually do unilaterally? Decisions to terminate these agreements raise questions under both international and domestic law. The United States is bound under international law when it becomes a party to an international agreement, and also has some limited obligations upon signature. Under US constitutional law, the presidency is at its most independent and powerful in dealing with foreign relations. While that power is not unlimited, soon-to-be President Trump could arguably fulfil all of those campaign promises without violating domestic or international law.

Paris Agreement on Climate Change

On 3 September 2016, the United States ratified the Paris Agreement on climate change which entered into force on 4 November 2016. The agreement was concluded under the auspices of the United Nations Framework Convention on Climate Change (“UNFCCC”) which was ratified by the United States in 1992 and entered into force in 1994. The Paris Agreement establishes no binding financial commitments or emissions targets. The states party are bound only to formulate and publish national plans for reducing greenhouse gas emissions to hold the increase in the global average temperature to “well below” 2°C above pre-industrial levels and pursue efforts to reduce the increase to 1.5°C. The United States is the second largest emitter of greenhouse gases in the world, and its participation in the Paris Agreement was critical to bringing other states, particularly China, on board. Read the rest of this entry…

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On the Paris Agreement’s Imminent Entry Into Force (Part II of II)

Published on October 12, 2016        Author: 
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This is Part II of a two-part post.

What are the Consequences of the Paris Agreement’s Entering into Force?

The Paris Agreement is to enter into force on 4 November 2016, 30 days after the second of its two thresholds was passed on 5 October 2016. On that day, the emissions covered by those Parties to the Convention that ratified or accepted the Agreement amounted to 56.75% of global total emissions; crossing the 55% bar required by the agreement. (see Part I)

So, what does this mean? I would like to highlight 10 points.

First of all, the Agreement becomes international law. It is an international treaty, i.e. an international agreement concluded between states in written form and will be governed by international law (Art. 2.1 (a) Vienna Convention on the Law of Treaties – VCLT).

While 197 Parties to the UNFCCC adopted the Paris Agreement and 191 signed it so far, it is important to note that it will only bind those 74 states and the EU (as of 7 October 2016) which have expressed their consent to be bound by it through ratification, acceptance or approval. Each of these states for which the Agreement is in force will then become a “Party” to the Agreement. This means that despite the commonly used adage, it is not a universal agreement. Rather, at the time of entry into force, it captures only about 2/5 of the Parties to the Convention, with others hopefully joining over time.

According to the principle of “pacta sunt servanda”, Parties are obliged to keep the treaty and must perform it in good faith (VCLT, Article 26). Good faith suggests that Parties need to take the necessary steps to comply with the object and purpose of the treaty. Neither can Parties invoke restrictions imposed by domestic law as reason for not complying with their treaty obligations. Read the rest of this entry…

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